The legal team that fought to save California's Proposition 8 from history's scrap heap practically dared U.S. District Judge Vaughn Walker to rule against the 2008 ballot initiative that banned same-sex marriage in the Golden State.
Led by attorney Charles Cooper, who stumbled and bumbled his way through closing arguments, these defenders of "traditional" marriage presented virtually no evidence to support their case during the months-long trial in San Francisco. Instead, they kept telling the veteran judge that legal standards and precedents were so clear and unambiguously in their favor that virtually no set of facts could support the arguments offered by their prime-time opponents, Ted Olson and David Boies, who led the fight to ban the ban on same-sex marriage.
But federal judges don't buckle to dares. And they rarely rush to endorse litigants who fail to present plausible (much less compelling) cases in their courtrooms. So for those of you just now tuning back in to this unfolding legal drama, Walker's landmark136-page ruling Wednesday is not nearly as surprising as you might think. As he suggested he would during closing arguments, the judge, an appointee of the first President George Bush, wholly rejected the dubious rope-a-dope strategy employed by Cooper and Company. Indeed, if the trial and the ruling were a boxing match it would have been an early TKO.
It is hard to overstate the significance of the ruling. For the first time in the nation's history, a federal judge has identified a right under both the equal protection and due process clauses of the federal Constitution that precludes a state from banning same-sex marriages. Just six years after Massachusetts charted its own course and recognized same-sex marriage on a state level, the matter is now squarely before the nation's judiciary. Within a decade the whole matter might be resolved. And all those people (like me) who blasted the dream team of Boies and Olson for rushing into this case before America was ready for it now are left to wonder what they missed.
Walker's opinion was detailed, intense and relentless in its rejection of the arguments offered by proponents of Proposition 8. For example, the crucial "findings of fact" contained in the ruling roll on for more than 40 pages; a paean to the dogged work of Boies and Olson and a vitiation of many of the beliefs and prejudices held by so many in and out of California when it comes to same-sex marriage. During the trial, Walker practically begged and cajoled the Prop 8 lawyers to do better for their cause. He asked them written questions to draw them out. He scolded them during closing arguments to make more persuasive arguments. They simply didn't or couldn't or wouldn't respond. And so, based on the evidence at trial, Judge Walker found:
1. "Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation."
2. "California has no interest in asking gays and lesbians to change their sexual orientation or in reducing the number of gays and lesbians in California."
3. "Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners."
4. "Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals."
5. "The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships."
6. "Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages."
7. "Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society."
8. "Proposition 8 increases costs and decreases wealth for same sex couples because of increased tax burdens, decreased availability of health insurance and higher transactions costs to secure rights and obligations typically associated with marriage."
9. "Proposition 8 singles out gays and lesbians and legitimates their unequal treatment. Proposition 8 perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents."
10. "The gender of a child's parent is not a factor in a child's adjustment. The sexual orientation of an individual does not determine whether that individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted."
Even if the appellate courts ultimately find that Walker got his legal analysis wrong, they cannot wash away what same-sex marriage proponents surely will call these 10 "points of light." Based upon those findings -- based upon the utter lack of a rebuttal by opponents of same-sex marriage -- Walker concluded that Prop 8 was so blatantly unconstitutional that it could not pass muster under any of the relevant legal standards that judges routinely apply in these cases -- even the one called "rational basis," which is a very low bar indeed. This was a rout, in other words, and there is virtually nothing in the language of Walker's ruling that suggests otherwise.
As most judges do in these sorts of situations, Walker immediately stayed the effect of his ruling pending an appeal. Soon the dispute will move to the 9th U.S. Circuit Court of Appeals where the Prop 8 lawyers will try to convince the appellate judges that Walker wrongly applied the factual record to existing legal precedent. I suppose it's possible that the 9th Circuit will overturn the ruling. But if it does, it will be forced to largely discount the testimony and conclusions of dozens of witnesses presented by opponents of Prop 8 while enlarging beyond all recognition the impact of the two -- and only two -- witnesses presented by Cooper and his team. It's clear what Walker thought of those defense witnesses; he ruled in his order that the testimony of one of them, Don Blankenhorn, was so inapt and contradictory that it was rendered inadmissible. You don't see that every day in a high-profile case in federal court.
Based upon Walker's factual findings, therefore, there may not be enough factual bedrock for the 9th Circuit to grab on to even if its judges are inclined to reinstate Prop 8. And the same goes for the U.S. Supreme Court. In any event, playing possum in a case of this magnitude -- laying in wait for the conservative Supreme Court to save the day -- is certainly not a risk most sensible litigators would have taken.
This is true especially since a high court ruling -- if and when it comes one day -- will almost certainly be determined by the sole remaining Californian on the court, Justice Anthony Kennedy, who always seems to cast the fifth and deciding vote in social cases like this. Like every other judge who now will look at this record, he will scratch his head and wonder: Where did Prop 8's case go? And how and why should it be rescued at this late hour?
Indeed, it is unclear and nearly unfathomable today why Prop 8's supporters would have been and remained so confident in Justice Kennedy's jurisprudence to have ceded so much ground at trial to their opponents. It is inconceivable that they would not have even attempted (much less succeeded) in rebutting the many strong facts and arguments offered by same-sex marriage proponents, who saw Prop 8 as an unlawful exercise of majority rule. Perhaps Cooper and Company will have more answers now than they had during the trial. Perhaps not.